Useful Advice
Want to know a bit about what I know? I’ve outlined some of my most useful advice below. I’f you want to know about somehting specific, then you can click on one of the buttons to head to that section.
Court Procedures
First appearance within 48 hours
Court days, not calendar ones, when in custody. If you bail out or are released with an appearance date, you must show up on the date given to you.
In between being arrested and having charges made up by the cops, the district attorney´s office will review the arrest report and file the actual charges.
If you followed rules #1 and #2, you may benefit from their prosecutorial discretion.
Prosecutorial discretion is the most powerful, least understood and most unregulated aspect of the criminal justice system. Good prosecutors can make the difference between the felony the cops want,and the misdemeanor they charge you with. It is a virtually unchecked power at the charging stage, there is little you can do but hope you were arrested in a good jurisdiction.
You may have been arrested for a felony, but only be charged with a misdemeanor, or not at all. This is especially true with misdemeanor arrests or arrests involving violations of the Fourth Amendment, it is very possible those cases will be designated “decline to prosecute.”
Again, this is why it is very important to follow the rules and also to not waste money on bail or private attorneys until you know what the actual charges will be.
Four things happen at your arraignment
The first appearance before the judge is when you will learn the actual charges, determine whether you qualify for court appointed counsel, have bail set or be released on your own recognizance, and have your next court date set.
Never waive time until you have determined whether or not you will be released or can make bail. The right to a speedy trial is one of the best weapons in a defense attorney´s arsenal, and once waived, it is difficult to get back.
You have the right to a trial within 30 days on arraignment for a misdemeanor, and within 60 days of arraignment on the information after the preliminary hearing, which must be held within 10 court days. Basically on a felony, it´s more like 72 days.
Get to court early and dress up like you´re going to church
Most courts have lists or an information desk to determine what courtroom you or your family member has been assigned to. If in doubt, the lists are posted outside every courtroom.
When you enter, turn off your phone and check in with the bailiff (unless otherwise instructed). The bailiff can be your best friend, and treat him/her with respect. They are not security guards. They have generally earned that rotation because they have some seniority and want normal hours. If it is a federal court, they are US Marshalls, they are the ones wearing the suits.
The bailiff and the court clerk are actually the ones running the courtroom, so treat them with respect as they can and will help you if they like you. But arraignment court is chaotic – treat it like the DMV, check in, sit down and be patient.
If you are the defendant and out of custody, you will need to fill out a financial declaration form to be appointed a public defender or court-appointed counsel
These are qualified lawyers who serve as public defenders in multi-defendant cases or small counties without a PD office. If you are in custody, you automatically qualify, and may have already been appointed an attorney even if you haven´t yet spoken to them. After filling it out, the judge will review it with you and then give you a lawyer.
Be careful to only use verifiable income (all information is under penalty of perjury) and don’t lie. If charged with a financial crime, be very careful.
If you decide you want to represent yourself, you will be required to fill out a Faretta form
And then the judge will review it with you before allowing you to do so. Afterwards, you are allowed to speak to the prosecutor and try to get a good offer. Anything you say during these “plea negotiations” cannot be used against you later. Essentially, you are speaking as an attorney on your own behalf, so explaining yourself cannot be later used as an admission. Although most attorneys will tell you not to represent yourself, if you have a good story, a good history and feel comfortable arguing your case, it might not hurt. Prosecutors hate “pro per” defendants, they may give you what you want just to get rid of you. Remember, they´re not used to having to actually listen to the people they prosecute, and they generally don’t like it. However, I would recommend consulting with me or another attorney before undertaking this action, and only in misdemeanor cases.
Don´t be offended or put off by defense attorneys being friendly with the prosecutors
They have to work together everyday, and just because they are being nice does not mean they will not fight for you. In fact, criminal courtrooms are the most collegial of all workplaces, as the work itself is often so dark, we develop gallows humor.
Don’t take it personally. And also remember that you get more bees with sugar than with salt, public defenders often get the better deal because the prosecutor has to see them everyday.
All misdemeanor pleas require a form, other actions also require paperwork
All forms are available in the courtroom or can be obtained online. As most are specific to the County wherein you are charged, you can Google the form beforehand and bring it with you to court to expedite the process. All misdemeanor plea forms are very lengthy and it can be helpful to have one with you beforehand if out of custody.
- Financial Form (to qualify for court-appointed counsel)
- Faretta Form (to represent yourself)
- 977 Form: allows your attorney to appear for you once the judge approves it. Can be helpful if you don´t want to appear at every court date whilst your attorney works on getting you the deal or dismissal you want.
- Misdemeanor Plea Form (also known as a Tahl/Boykin form)
- DUI and suspended license forms are different than normal misdemeanor forms
When searching for forms, make sure to include County and type of form, they are also available in paper format, the bailiff will give you one if asked. Felony pleas do not generally require forms, they are conducted in open court by the judge. You should not plead to a felony without consulting an attorney.
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Calendar designed to help people with court dates or late arrests
Driving Rules and Offences
If a cop pulls you over whilst driving, by law you have been detained
You must provide them your driver´s license, proof of insurance and registration. They have the right to order both you and any passengers out of the vehicle for “officer safety.” They may ask you to perform field sobriety tests if they have a reasonable suspicion to believe you are under the influence.
They can shine their flashlight into your car and anything that is in “plain view” can give them probable cause to search the car and/or make an arrest. They should not search your car further or conduct frisk searches of you or your passengers, but they might. All you can do in the face of this is ask them what gives them a reason to suspect that you are “armed and presently dangerous” because although you will respectfully follow their commands, you are not consenting. Refer back to Rule #2…
They cannot search your car without your consent or without probable cause, but they do not need a warrant
But they have to have the same level of proof as if they had gotten a warrant, so again, remember the rule about consent and do not give it. My clients always told me the reason they gave the cops permission was either they thought it was a test (i.e. if I don´t say yes they´ll think I´m being suspicious), or that if they said yes maybe the cops wouldn´t search very hard.
Never give them permission to search your car. They cannot use your refusal to give up your rights against you, and they absolutely will rip it apart.
The exception to the search rule is if you are driving drunk, or have tags that are expired, don´t have a license, etc.
They will have your car towed and then they can do an “inventory search.” There is nothing you can do to prevent this, except if the car is absolutely clean and you have another licensed driver on scene that they will release it to.
But remember, they have much more training than you, and unless the car is registered, insured and there is someone else present that they will give it to, it is getting towed anyway. Rule #1 can be useful in this regard. If you are under the influence, and respectfully accept that you will be arrested, they may release your car to someone else if you don’t piss them off.
This doesn´t mean you have to violate Rule #2, but they don´t like paperwork either and are also human, so if you have someone available they can release the car to, they might not be assholes.
Normal car stops take approximately 15 minutes (excluding DUI)
What this means is that the cops only have that long to investigate your bad driving before they have to either let you go or issue a ticket, decide to arrest you and/or tow the car.
Drug dogs can only be used if they can get them to your location before that time period has expired. Running a drug dog around the car is not considered a search, but if it alerts to the presence of drugs, they then have probable cause to search. This is why it is especially important to follow rule numbers one and two by refusing to consent but doing it respectfully. At all times note the time you were pulled over and make sure and let the police officer know that you are not consenting to any “prolongation” of the stop to allow them time to bring in the dogs. Say it nicely, but they know all about the prolongation rule and will understand and be on alert that you know your rights.
DUI´s: It is not illegal to drink and drive
It is only illegal to drink and drive with an elevated blood alcohol level or with drugs in your system OR if you are under the influence and are not in full control of your vehicle. Most people get pulled over for a traffic violation and then when asked if they have had a drink, they almost always say, only one or two. That´s enough for them to then conduct their investigation.
While I am not telling you to lie to cops (especially federal ones as that is a felony in and of itself), this is when you should tell them “I am exercising my Fifth Amendment rights on the grounds that I am being detained and have the right not to incriminate myself.”
Hiring an attorney to represent you for a DUI is one of the biggest mistakes people make
If you were driving and have been drinking, you will likely be convicted. The penalties for DUI´s are what we call statutory in nature, meaning the judge has little discretion to give you anything under what is called the ¨statutory minimum.¨ You will have to pay substantial penalties (whatever the fine is comes with ¨penalty assessments,¨ which basically means the amount is tripled. You will have to go to classes and pay separately for them, your insurance will increase automatically and you will have your license suspended for at least 30 days.
You can go to the DMV after your arrest and before your court date to begin the process, and they will give you a provisional license (meaning you can drive to work or school) for the remaining 3 months of the mandatory 4 month suspension. But the 30 days is again, what is called a statutory requirement.
DUI´s are affectionately (or not in my opinion) called the ¨bread and butter¨ of private criminal defense attorneys. There is generally little they can do for you other than explain the process and pretend that by getting you the statutory minimum that they have gotten you some great deal. Don’t be fooled.
And remember, even if the police have arrested you for a DUI, the prosecutor has to decide whether to charge you.
It might be hard to wait it out, but just like the bail situation, you shouldn´t throw money at the problem until you know you have one. And lastly, never opt to take a blood test instead of the breathalyzer. They might find other things in your blood, and whilst the breath machine has been successfully challenged in court (as the machine has to be regularly calibrated and cleaned and is untrustworthy at times), blood almost always tells the truth.
There are also multiple collateral consequences for a DUI (job opportunities, travel to foreign countries, increased insurance payments, adverse effects in custody battles, etc.)
Sadly, if you are guilty, you will likely be found guilty. Many attorneys will tell you otherwise so that they can get you to hire them, but unless you weren’t driving or the cops pulled you over in violation of your Fourth Amendment rights, you have little chance of success. And as the fines and fees will run into the thousands regardless, you might be best to settle early. But DUI´s are “priorable” which means that they will only get worse if you get another one, so even though it is legal to drink and drive, it´s probably best not to.
Driving without a license or on a suspended license
This is one of the most charged misdemeanors. If the cops have any reason to pull you over, and you do not have a valid license, they can impound and then search your car based upon the “inventory” exception. And if they see anything in “plain view” during the course of the stop, you may have other problems.
- VC 12500: driving without a license. Can be charged as a misdemeanor, but can and is generally reduced to an infraction (ticket) if it is your first offense. It can also be very helpful if you go to the DMV and get a license before your first court appearance if you can. This charge will result in no points on your license, as you don´t have one.
- VC 14601.1: driving on a suspended license. 1st offense carries up to six months, 2d offense up to one year in jail. It also carries two points on your license. The main question when charged with this offense is, did you know it was suspended? This offense requires the government to prove that you were given notice (sent to your address of record, etc.) but can often be the collateral consequence of something that you were not aware of. Failure to report an accident (even a one car collision), a conviction for underage drinking even if unrelated to driving, vandalism, a failure to appear on an unrelated charge, excessive points on your driver’s license and most often, a failure to pay court-ordered child support – these all result in a suspension that you may not have known about. All of these, and others, can result in your license being suspended automatically.
If you are behind on child support and get informed and charged with driving on a suspended license, go directly to Family Court and fill out the appropriate forms to bring yourself into compliance (even if you can´t pay, going there will go a long way with the court). This charge is often reduced to driving without a license if the prosecutor has even an inkling that they will have trouble proving you knew your license was suspended. Always go to the DMV and ask them why your license was suspended, and if possible, get the suspension removed before court. You will then have a good argument to get the charge dismissed or at a minimum, reduced to a ticket for VC 12500.
All driving offenses are also priorable, meaning a second or more conviction will carry worse penalties. Never accept a misdemeanor on your first offense for any of these at your first court appearance because you want to “get it over with.” Once you have one conviction on your record, it will haunt you for the rest of your driving career. And other than DUI´s, all driving offenses can and usually will be reduced to an infraction if you let them know that they will have to earn a conviction. No judge or prosecutor wants to waste their time conducting a jury trial for driving without or on a suspended license, use that to your advantage.
Talk to the Gatlin Gun
Calendar Appointment - $50 for 25 minutes
10 pm to midnight PST Sunday-Thursday
7 am to 10:30 am PST Monday - Friday
Calendar designed to help people with court dates or late arrests
Misc. Crimes
Domestic Violence:
This is the sacred cow of the criminal justice machine. In my opinion, it is generally a mechanism used against poor men to enrich the system. You will absolutely be discriminated against if you are a man charged with this crime. There is a network of “victim services” and a training system in place for judges, police and prosecutors, as well as laws, that mean the “victim” will never be allowed to retract their initial statement to police.
Do not believe that the fact that you have made up with your partner will have any bearing on your situation. These cases also have severe collateral consequences in the event of any conviction (no guns for life, custody implications, driver’s licenses, jobs, etc.), so this is a charge where you absolutely need to have a lawyer and fight it with everything you have.
Resisting Arrest
If you followed the Rules, you shouldn´t have this charge. But if you didn´t, it is the holy grail of all police interactions when you piss them off or don’t follow their instructions to the letter.
However, this charge is problematic to prove, and there are numerous defenses to this charge. Most importantly, even police have to follow the law, and if they are violating your rights and/or using excessive force to arrest you, you have a right to defend yourself (you don´t have to get killed like George Floyd).
But it is very nuanced, and this is one offense I absolutely suggest you consult with either me, or your attorney, before accepting an offer. They may offer you a PC 415 (fighting, offensive words, disturbing the peace, etc.) or they will often offer you a non-custodial sentence in order to get rid of you. But never accept a plea to a misdemeanor to again, “get it over with.” A conviction for resisting arrest will make you a marked man for the rest of your life in any future interaction with the police.
Theft Offenses
Based upon recent changes in California law, you may think you can get away with minor stealing. However, the police can aggregate (meaning add up) multiple charges to elevate several minor shop-lifting charges into a felony. There will also be numerous collateral consequences, particularly in the immigration context, as any theft conviction can make you forever inadmissible to the United States based upon what we call “moral turpitude,” which means it shows you have a general willingness to do evil.
Even as an attorney, any arrest or conviction for any theft offense could cost me my license. And although “petty theft with a prior” has been eliminated in some contexts, if you have two prior theft offenses, the third can be charged as a felony, regardless of the amount of the current theft. And a prison sentence is allowed if you have four or more convictions for a petty theft. So, thou shalt not steal.
Drug Offenses
Although simple possession is now generally charged as a misdemeanor, it isn’t always, depending on the circumstances. Possessing with intent to sell, having a gun on your person, having previously failed at court-mandated treatment, etc. – can all result in a felony charge. And while diversion can be a good first option, remember, you will only be given so many chances to do rehab. If you´re not ready to quit doing drugs, don´t agree to treatment that you can’t or don´t want to complete. You´re only setting yourself up for greater penalties down the line.
Guns/Weapons
Be very careful pleading to a weapons charge without consulting with an attorney. There is a Second Amendment right to bear arms that is currently being expanded in many ways throughout this country. There is also always the right to arm yourself if you have a reason to be in fear for your life. You also might need a knife for your work or simply forgot it was on your person or in your car. Never plead to a weapons charge without a lawyer.
Assaults/Battery
Many versions of assaults and battery can be defended. They are also almost all “wobblers,” meaning they can be initially charged and even pled to as a felony, but can be reduced to a misdemeanor and stricken from your record at a later date. Even simple misdemeanor assault charges are often defensible, as mutual combat, self-defense or “fighting words” can be used to defend oneself. But follow the Rules, and let your attorney do your explaining. Again, another situation where you should absolutely consult with an attorney.
Re Sentencing Relief and Coaching
There are many new mechanisms in place to get relief from excessive sentences already imposed. You or your family member may be sitting in prison on a sentence that he/she has a right to have reduced. Whilst most prisoners were supposed to have been notified of this right, it may be that they were not capable of understanding or were unable to navigate the process. Also, if they were no longer in custody or on probation/parole, they may not be aware that they have the right to have many charges dismissed.
This is particularly relevant to gang enhancements, gun enhancements, anyone convicted on a “felony murder” charge, anyone convicted of committing a murder under the age of 26 and anyone subjected to sentencing enhancements based upon prior convictions or prison terms.
The Prison Law Office has many good resources, but they cannot represent you. This is another situation where it can be very helpful to consult with an attorney to help you navigate the process and fill out the appropriate forms. The law is there to help you, but you may need guidance on the proper route to take.
Useful Resources
There’s some additional information in the links below, and if you want to know more, then you can get in touch.
Also, forms available at selfhelp.courts.ca.gov and courts.ca.gov and formfiles.justia.com
but each county has their own forms, so best for them to get it directly from the county.